S&B Engineers & Constructors, Ltd. and Zurich American Insurance Company v. Scallon Controls, Inc.

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-22-00261-CV
__________________
S&B ENGINEERS & CONSTRUCTORS, LTD.
AND ZURICH AMERICAN INSURANCE COMPANY, Appellants
V.
SCALLON CONTROLS, INC., Appellee
__________________________________________________________________
On Appeal from the 172nd District Court
Jefferson County, Texas
Trial Cause No. E-198,919
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ORDER
Upon receiving the clerk’s record, the Court finds it is necessary to abate the
appeal and remand the case to the trial court for an order clarifying the trial court’s
orders granting motions for summary judgment.
To be final, a judgment must dispose of all issues and parties in a case. N.E.
Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966). No presumption of
finality arises when a judgment is signed without a traditional trial on the merits.
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Crites v. Collins, 284 S.W.3d 839, 841 (Tex. 2009). To determine whether such an
order is final, we examine the express language of the order and whether the order
actually disposes of all claims against all parties. Id. “A judgment that finally
disposes of all remaining parties and claims, based on the record in the case, is final,
regardless of its language.” Lehmann v. Har–Con Corp., 39 S.W.3d 191, 200 (Tex.
2001). “Thus, if a court has dismissed all of the claims in a case but one, an order
determining the last claim is final.” Id. A judgment is final either if “it actually
disposes of every pending claim and party” or “it clearly and unequivocally states
that it finally disposes of all claims and all parties.” Id. at 205. When unmistakable
language of finality is missing, the record resolves the issue. Bella Palma, LLC v.
Young, 601 S.W.3d 799, 801 (Tex. 2020).
On February 12, 2020, the trial court granted a motion to realign the parties
with S&B Engineers and Constructors, Ltd., Sunoco Logistics Partners Operations
GP LLC, and Sunoco Logistics Partners LP as plaintiffs and Scallon Controls, Inc.
as defendant. On December 9, 2021, the trial court signed an order nonsuiting the
claims of Sunoco Logistics Partners Operations GP LLC, and Sunoco Logistics
Partners LP without prejudice. On December 10, 2021, Zurich American Insurance
Company filed a petition in intervention asserting a subrogation claim against
Scallon Controls, Inc. On January 27, 2022, the trial court signed an order denying
the motion for summary judgment filed by S&B Engineers and Constructors, Ltd.
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and granting the motion for summary judgment filed by Scallon Controls, Inc., “in
its entirety.” The January 27, 2022 order is expressly interlocutory due to the
unresolved intervention. On July 15, 2022, the trial court signed an order stating that
Scallon Controls, Inc.’s motion for summary judgment on the petition in intervention
of Zurich American Insurance Company “is hereby in all things GRANTED.”1
Neither of the orders granting Scallon Controls, Inc.’s motions for summary
judgment contain decretal language actually disposing of the claims asserted by
S&B Engineers and Constructors, Ltd. and Zurich American Insurance Company.
The decretal portion of a judgment grants or denies the remedy sought. Matter
of Guardianship of Jones, 629 S.W.3d 921, 925 (Tex. 2021). “An order that merely
grants a motion for judgment is in no sense a judgment itself. It adjudicates nothing.”
Naaman v. Grider, 126 S.W.3d 73, 74 (Tex. 2003). But finality requires no particular
phraseology so long as the judgment is expressed in language which is significant in
common understanding and parlance. Jones, 629 S.W.3d at 926. “An order that
merely grants a motion for summary judgment without any decretal language
actually disposing of a claim is not a judgment on any claim.” Frausto v. RC Indus.
LLC, 605 S.W.3d 54, 56 (Tex. App.—San Antonio 2020, no pet.).
In Jones, the trial court signed an order that granted motions to dismiss a bill
of review. 629 S.W.3d at 923. Although the order lacked decretal language, the order
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The Order of July 15, 2022 has been omitted from the clerk’s record.
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did state, “This order is a final order.” Id. at 924. Here, neither order granting the
defendant’s motion for summary judgment decrees that the plaintiff or intervenor
take nothing, the January 27, 2022 order is expressly interlocutory, and the July 15,
2022 order does not state that it is a final order. “If the appellate court is uncertain
about the intent of the order, it can abate the appeal to permit clarification by the trial
court.” Lehmann, 39 S.W.3d at 206.
On our own motion, we abate the appeal and remand the cause to the trial
court. On remand, the trial court shall give notice to appellate counsel and
supplement the record to indicate whether it rendered a final judgment on July 15,
2022. If the trial court intended to render a final disposition of all parties and all
claims, it shall modify the Order of July 15, 2022 to state that intent clearly and
unequivocally. See Tex. R. App. P. 27.2 (“The appellate court may allow an appealed
order that is not final to be modified so as to be made final and may allow the
modified order and all proceedings relating to it to be included in a supplemental
record.”). Conversely, if the trial court concludes it did not intend to render a final
judgment, it shall so certify in writing. See Disco Mach. of Liberal Co. v. Payton,
900 S.W.2d 71, 74 (Tex. App.—Amarillo 1995, writ denied) (abating and remanding
appeal for clarification of whether final judgment was intended). A supplemental
clerk’s record containing the July 15, 2022 order and the modified order clarifying
its intent regarding finality, or the trial court’s certification that it did not intend a
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final judgment, shall be filed with the clerk of this Court on or before October 3,
2022. The appeal will be reinstated without further order of this Court when the
supplemental clerk’s record is filed with the Court of Appeals. All appellate
deadlines are suspended while the case is on remand to the trial court.
ORDER ENTERED September 1, 2022.
PER CURIAM
Before Golemon, C.J., Horton and Johnson, JJ.
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